Prop. 8 lawyer Charles Cooper gets the final word as the argument wraps up, again repeating his argument that society has ample reason to define marriage as between a man a woman, and that there is no Supreme Court precedent to suggest otherwise.

Judge Reinhardt has just ended the session, which ran a bit longer than expected

12:36 p.m.: Judge wonders aloud how far court can go

As Olson winds down his argument with some rhetorical flourishes, Judge Reinhardt continues to wonder aloud how far the 9th Circuit should go in the Prop. 8 case. As the court's leading liberal, Reinhardt has often been slapped down by the more conservative Supreme Court for going too far with some of his rulings. Reinhardt asked Olson if the court should decide whether there is a broad constitutional right for same-sex couples to marry, or on narrower grounds that apply just to California and the fact that Prop. 8 stripped away the right of gay and lesbian couples to marry in this state

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"There is no doubt it is discrimination and that it does great harm and I submit that it can't be justified at any level," Olson responded, suggesting that the 9th Circuit should go all the way with a ruling finding that laws banning same-sex marriage violate the federal constitution. The 9th Circuit's ruling would apply to nine western states.

Therese Stewart, the city of San Francisco's chief litigator, is now beginning her brief argument session. Stewart argued the same-sex marriage issue in the California Supreme Court as well.

Olson has rolled out the most recent U.S. Supreme Court case that provided legal protections to gays and lesbians, 2003's Lawrence v. Texas, which struck down Texas' anti-sodomy law. Olson observed that the Supreme Court in the past has found that marriage is a fundamental right, and that the court in Lawrence found that it is unconstitutional to regulate the sexual behavior of same-sex couples.

"How can the fundamental right to marry be taken away from Californians if they are engaged in constitutionally protected activity?" Olson asked.

He also said same-sex marriage can't harm heterosexual marriage, and that was proven at January's trial. Judge Hawkins is carefully asking if the court can tamper with Prop. 8 if there is any way to justify the law's existence, and Olson keeps pounding on the idea that "what conceivable damage" can be done by allowing gay marriage.

Judge Smith has begun to press Olson on why it isn't rational to distinguish marriage from domestic partnership in "name only" to encourage "responsible procreation."

12:09 p.m.: Judge asks if gay marriage is required by the constitution

Prop. 8 attorney Charles Cooper finished up his arguments, much of it devoted to pushing the notion that society has a "rational basis" to confine marriage to heterosexual couples because of the need to encourage procreation. At one point, Judge Reinhardt, reacting to the argument that society also could justify the law because of better parenting, he said: "That sounds like a better argument against divorce."

Theodore Olson, the other high-powered lawyer for same-sex couples, has now started his argument. Reinhardt asked Olson, a Republican former U.S. Solicitor General: "Are you suggesting gay marriage is required by the constitution of the United States?" "Do we have to reach that point?" "I'm trying to find out how far we have to go if we are to accept your view of this case?"

Charles Cooper, Prop. 8's lawyer, is drawing skepticism from the panel on his argument that the same-sex marriage ban is justified by society's need to encourage procreation and to ensure that children are raised by their mothers and fathers. Even N. Randy Smith, considered the most conservative of the three judges, wondered what basis there can be for denying marriage rights to same-sex couples in California when state law already gives them most of the same legal rights under domestic partnership laws, from raising children to adoptions.

"What is the rational basis then if homosexuals have all the rights heterosexual couples have. We're left with a word"....marriage," Smith said.

Judge Hawkins also pressed Cooper on whether the Supreme Court's ruling more than a decade ago striking down a Colorado law that stripped gays and lesbians of protections against discrimination is the key precedent, particularly because same-sex couples had the legal right to marry in California before Prop. 8 was approved by voters. About 18,000 same-sex couples were married in California after the state Supreme Court struck down the prior state laws forbidding gay marriage in 2008.

11:26 a.m.: Arguments begin on constitutional issue

After a ten-minute break, the judges are now beginning to hear arguments on the central question of whether Proposition 8 violates the constitutional rights of same-sex couples. Cooper has called marriage "fundamental to the survival of the human race," an issue that must be decided through the "democratic process."

Judge Hawkins interjected: could the people of California reinstitute school segregation by a vote? How's this different?

This is nothing like those racial restrictions, Cooper responded, saying such race-based laws have "no rational basis."

Judge Walker, in striking down Prop. 8, found there was no rational basis for banning same-sex marriage.

10:58 a.m.: Judge quips about California election results

Classic exchange between Judge Reinhardt and Boies, who was being pressed on the fact that Chief Judge Vaughn Walker's ruling technically might only apply to Alameda and Los Angeles counties, where the two plaintiff couples sought marriage licenses. Boies had been discussing the fact that the governor and attorney general, if Prop. 8 is struck down, would then extend the impact of the ruling by enforcing state marriage laws throughout California to allow same-sex couples to marry in all counties.

"We do have to depend on the governor and attorney general," Boies conceded.

With Brown taking over as governor and Democrat Kamala Harris taking over AG, Reinhardt spotted an opening.

"Well, then, you're lucky the election came out the way it did," Reinhardt quipped.

10:52 a.m.: Challengers' attorney also encounters tough questioning

All is not necessarily smooth for David Boies, the lawyer for couples challenging Prop. 8. Judge Smith, and to some extent Judge Reinhardt, are troubled by the prospect that there would be no one to defend the voter-approved law because the governor and attorney general have refused to do so. Smith has been vocal about the fact Arnold Schwarzenegger and Jerry Brown have refused to defend the law in the 9th Circuit.

"What we have here is an attorney general and governor with no ability to nullify the acts of the people, and then, by not appealing, they do it," Smith shot at Boies.

Added Reinhardt at one point: "That does not seem to be consistent with the initiative process"...it's just tossing in the towel."

Reinhardt suggested one option for them is to ask the California Supreme Court to clarify the issue under California law. That is, would ballot sponsors have a right to defend state laws when the governor and AG will not. "Would that not be advisable?" Reinhardt wondered, expressing concern that the procedural issues should be resolved before going to the central question of whether same-sex couples have a right to marry.

10:33 a.m.: Imperial County attorney gets a lecture from judge

Robert Tyler, Imperial County's lawyer, had a bumpy ride with the panel, particularly Judge Hawkins, who was troubled by the fact that the county is pressing its argument on behalf of a deputy clerk and not the clerk herself. Hawkins and his colleagues wondered aloud how a deputy clerk would even have the authority to defend the law, even if the board of supervisors was behind the effort.

At one point, Judge Reinhardt lectured Tyler about speculating when he didn't know the answer to a question. "When you're asked a question, and you don't know the answer, say so," the judge said.

David Boies, the lawyer for same-sex couples, is now beginning his argument on the issue of legal standing

All three judges are quickly jumping on Proposition 8's lawyer on the question of whether backers of the same-sex marriage ban have the legal right to appeal the case in the first place. A key issue in the case is whether the Prop 8 supporters have legal "standing" to appeal a federal judge's order this summer declaring the same-sex marriage ban unconstitutional. Gov. Arnold Schwarzenegger and Gov.-elect Jerry Brown have refused to defend the law, raising serious doubt as to whether backers of a ballot initiative can appeal it on the state's behalf.

Judge Michael Daly Hawkins quickly questioned Prop. 8 lawyer Charles Cooper on whether there is any legal precedent in support of sponsors of ballot measures having the right to defend a state law in federal courts, noting that the most recent U.S. Supreme Court precedent suggested they do not. "Your honor, I do not have a case," he replied.

Cooper tried to argue that ballot measure sponsors do have a right to defend state laws in state court in California, and did so in the state Supreme Court in earlier fights over gay marriage. Judge N. Randy Smith also wondered why Prop. 8 supporters didn't try to go to court to force Brown, as attorney general, to defend the law as part of his legal duties.

Now, Robert Tyler, a lawyer for Imperial County, is arguing for the right to defend the law as well. Hawkins is expressing skepticism that the county can press the appeal and defend the law.

With demonstrators buzzing around the historic 9th U.S. Circuit Court of Appeals building in San Francisco, arguments are about to get rolling in the legal challenge to Proposition 8, California's ban on same-sex marriage. The competing legal teams are at their respective tables in the third floor courtroom, where Judges Stephen Reinhardt, Michael Daly Hawkins and N. Randy Smith will soon emerge for the two-hour proceedings. The courtroom is filled, cameras at the ready to televise the proceedings. Chief Judge Alex Kozinski just walked through the courtroom to scan the situation. The arguments begin at 10 a.m.